JOHN ERNEST VERBLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Ernest Verble appealed his sentence following a plea of nolo contendere to shooting into a building and carrying a concealed firearm. The Florida District Court of Appeal reversed and remanded for resentencing because the trial court's oral pronouncement of a single split sentence was ambiguous and the written judgment contained discrepancies that resulted in an illegal sentence.
The court reversed and remanded for resentencing because the trial court failed to impose a separate sentence for each offense as required, and the oral pronouncement of sentence (which prevails over the written judgment) was ambiguous regarding which offense it addressed, with the written sentences containing conflicting references to counts and an apparent illegal split sentence as to the carrying a concealed firearm charge.
[1] A trial court must impose a sentence for each offense.
[2] An oral pronouncement of sentence prevails over a written judgment and sentence form.
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Join FLexlaw to unlock all legal intelligence“A trial court must impose a sentence for each offense.”
Establishes the fundamental requirement that each count must receive a separate sentence.
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Join FLexlaw to unlock all legal intelligenceVerble was charged with shooting into a building, aggravated assault, and carrying a concealed firearm. He pleaded nolo contendere to Counts I and III…
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PER CURIAM.
John Ernest Verble has appealed from judgment and sentence imposed following his plea of nolo contendere to shooting into a building and carrying a concealed firearm. We reverse, and remand for resentencing.
Verble was charged with shooting into a building, aggravated assault, and carrying a concealed firearm (Counts I — III, respectively). The trial court thereafter accepted his plea of nolo contendere to Counts I and III, in return for a guidelines sentence and a nolle prosequi of Count II.
The scoresheet prepared for sentencing reflected a total of 68 points, corresponding to a permitted sentence of up to 4)6 years incarceration. At sentencing, the trial court orally pronounced a single split sentence of “3)6 years [incarceration] and 5 [years] probation.” The written judgment adjudicated Verble guilty of Counts I and III (denominated Counts 001 and 003). The written sentences indicate, as to “Count 00 — ,”, 3 years and 6 months plus 5 years probation and, as to “Count 002,” 3 years and 6 months (no probation). Finally, the written probation order imposes probation “for a period of 5 years, each count concurrent, but consecutive to 3]6 years prison.”
A trial court must impose a sentence for each offense. Fla.R.Crim.P. 3.701(d)(12). The trial judge herein pronounced a single split sentence of 3)6 years incarceration followed by 5 years probation, without specifying the offense to which the sentence applied.1 While the written judgment and sentence purport to impose a sentence for each offense, the oral pronouncement of sentence prevails over the written judgment and sentence form. Armstead v. State, 612 So. 2d 623, 624 (Fla. 1st DCA 1993). Further, the written sentences are ambiguous as to the counts to which they pertain, that is, one specifies “Count 00 — ,” and the other “Count 002” (which the state dismissed as part of Verble’s plea bargain). Finally, the written probation order appears to impose probation as to both counts which, as noted, would result in an illegal sentence as to the offense of carrying a concealed firearm.
Based on the totality of the circumstances as set forth above, we reverse the sentences imposed below, and remand for resentencing.
ZEHMER, C.J., SMITH, J., and WENTWORTH, Senior Judge, concur. . We note that this sentence would be illegal as to the offense of carrying a concealed firearm, a third-degree felony with a maximum statutory term of 5 years. See Committee Note to Fla. R.Crim.P. 3.701(d)(12) (if a split sentence is imposed, the total sanction — incarceration and probation — shall not exceed the term provided by general law).
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Cited By
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Whitehead v. State, 654 So. 2d 653 (Fla. 3d DCA 1995)…ntencing order. “The law is clear that the written sentence entered in a criminal case must conform to the trial court’s oral pronouncement of sentence in open court.” Nodal v. State, 650 So. 2d 696, 696 (Fla. 3d DCA 1995); see also Verble v. State, 636 So. 2d 890, 891 (Fla. 1st DCA 1994); Trueblood v. State, 635 So. 2d 1024, 1025 (Fla. 1st DCA 1994); White v. [*654] State, 624 So. 2d 811, 812 (Fla. 3d DCA 1993); Armstead v. State, 612 So. 2d 623, 624 (Fla. 1st DCA 1993); Fairman v. State, 576 So. 2d 948, 950…
Authorities Cited
- Armstead v. State, 612 So. 2d 623 (Fla. 1st DCA 1993)